1905074 (Refugee)

[2022] AATA 4726

1905074 (Refugee) [2022] AATA 4726 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905074

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Genevieve Hamilton

DATE:30 September 2022

PLACE OF DECISION:  Melbourne

DECISION:

The Tribunal has no jurisdiction in relation to the first-named applicant. 

The Tribunal affirms the decision not to grant the second-named applicant a protection visa.

Statement made on 30 September 2022 at 3:33pm

CATCHWORDS
REFUGEE – protection visa – Fiji – actual or imputed political opinion – son-in-law’s active involvement with indigenous rights and own protection visa – vulnerable older person, victim of crime and lack of health services – late claim as member of political party and host of meetings – first applicant now deceased and no separate claims by second applicant – delay in applying for protection – applied after several previous visits to Australia – country information – no jurisdiction for first applicant – decision under review affirmed for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (2A), 65(1)

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 July 2018.  The delegate refused to grant the visas on 5 February 2019.  Sadly, [the primary applicant] passed away in March 2022.  The review application, insofar as it concerns him, was withdrawn, leaving [the second-named applicant] the only review applicant. 

3. [The second applicant] attended a hearing of the Tribunal on 29 September 2022.  She was supported by her daughter [Mrs A].   

   Criteria for a protection visa

4. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s.36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)), or on ‘complementary protection’ grounds (s.36(2)(aa)), or be a member of the same family unit as such a person.

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1). 

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

8. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).  The persecution must also involve systematic and discriminatory conduct.

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

11. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Claims and evidence

16. The protection visa application records the following information about [the second applicant]: that she was born in Fiji in [Year 1], travels on a Fijian passport and is a Fijian citizen.  Her only travel outside Fiji (other than to Australia) was for a Christian crusade in New Zealand in April 2018 (following her arrival in Australia). 

17. [The first applicant] was a bar man until [Year 3] and then had a [business].  She was a housewife.  They lived in [Town] (Central).  They married in [Year 2].

18. The claims for protection were made by [the first applicant] and it was stated that [the second applicant] had no claims of her own.   

19. [The first applicant] said he left Fiji in fear of his life it was not a safe place as it used to be for old vulnerable people like him.  When he last returned from Australia he experienced two attempted armed robberies, and lodged a police complaint but no one had been arrested. 

20. [The first applicant] feared being targeted because of his son in law’s involvement in fighting for the rights of Fijians in Fiji.  He had been vocal both on social media and on the radio.  The military and the police are loyal to Bainimarama.  [the first applicant] also had health problems and there was a lack of care for old people. 

21. Prior to the hearing [Mrs A] submitted country information concerning that Fijian PM Bainimarama’s son had repeatedly committed domestic violence, that in 2015 Bainimarama had threatened Fijians living in Australia against plotting against the Government, about other incidents of violence against women, and about police brutality.  She stated “we do not feel that my mother will be safe … because of our involvement in our continuous fight for this government to be removed in the next election”. 

22. At the hearing, [the second applicant] said that her husband had suffered from [cancer] and other serious conditions before he passed away.  They had [children], most of whom are lving in Australia.  She acknowledged they had visited Australia on several occasions before their most recent arrival and lodging a protection application.  She said she could not go back to Fiji because her husband was a member of SODELPA and used to host meetings at his home.  Also her son-in-law was putting things in the media about the government and she and her husband lived in fear.  Many things happened, such as people throwing stones at their house and verbally criticising them. 

23. [The second applicant] said her husband joined SODELPA in [Year 4].  Asked why he joined SODELPA, she said it was a Fijian Party.  Asked if her husband had been interested in politics before [Year 4], the applicant replied in the affirmative.  Asked what his concern was, she said he was concerned about rights to land, he still owned some in [Location] and was concerned for their family’s future.  Her husband had no leadership role in the Party, he was just a member.  The Tribunal asked why her husband was hosting meetings if he had no leadership role.  She said another family member asked him to do so because it was convenient for the locals.  The relative led the meetings.  Asked why the relative led the meetings, [the second applicant] said she did not know their role.  He was a leader in the local are.  The meetings were held at their house 4-5 times between [Year 5] and [Year 6].  They did not actually announce them as Party meetings, because they were frightened and needed to keep them secret.  Asked what was going on in politics during those years, [the second applicant] said she was not sure.  The Tribunal put to [the second applicant] that SODELPA wasn’t formed until 2013, she confirmed that she was referring to its predecessor the SDL.  She did not know what the name SDL stood for. 

24. The Tribunal put to [the second applicant] that even if it was not her directly that was involved in politics, if it had caused her to feel threatened the Tribunal would have thought that the applicant would have a more concrete knowledge of the nature of and the reason for her husband’s involvement and the political context.  The Tribunal put to [the second applicant] that the protection visa application did not state that her husband was a Party Member, that he had hosted meetings, or that he was ever threatened or harassed in any way, but simply said that he feared being associated with his son-in-law’s activities.  [The second applicant] did not comment.  She confirmed that her husband had experienced armed robbery.  She confirmed she had no other claims.  She just wants to stay here in Australia.  She did mention that her daughter in Fiji, who was married to a policeman, was not happy with her. 

25. [Mrs A] said she had been close to her father and he did not tell her mother much about his political involvement.  The family were strong SDL/ SODELPA supporters and her father certainly was a member.  They used to help fund the campaigns.  Her father never really wanted to stay in Australia, he found it too cold.  He was well known to the SODELPA women’s wing leader.  In 2018 it was close to the election when her father was robbed, he suspected it was because they had a meeting at his house, her mother must have forgotten this.  [Mrs A] said her family is well known to be opposed to FijiFirst, her husband talks publicly about politics, an iTaukei MP had recently been gaoled for two years. 

26. [Mrs A] said that she and her husband obtained protection visas in [Year 5] because of her husband’s anti-government profile. 

27. DFAT Country Report on Fiji contains the following information relevant to the broad claims made by the applicant:

    Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s FijiFirst party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia.

    …

    The main opposition parties at the time of writing are the Social Democratic Liberal Party (SODELPA) with 21 members of parliament, and the National Federation Party (NFP) with three. The ruling party, FijiFirst, has 28 seats in the Parliament. FijiFirst emphasises diversity and has Indo-Fijian members of parliament. SODELPA and (to a lesser extent) the NFP draw their support from iTaukei. The Fiji Labour Party, which has no seats in Parliament, tends to be supported by Indo-Fijians and is led by former Prime Minister Mahendra Chaudry. Former SODELPA leader and former Prime Minister (and 1987 coup leader) Sitiveni Rabuka has established the People’s Alliance Party (PAP) to contest the next election and is seeking to draw multi-ethnic support.

    Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.

    SODELPA was suspended in 2020 under electoral rules for breaching its own constitution. SODELPA is factionalised with personal loyalties and geographic loyalties tied to particular chiefs. Factional disputes can be very public and ill-disciplined, which may have increased attention paid to them by the media and regulators.

    SODELPA leader (and 1987 coup leader) Sitiveni Rabuka was charged with corruption offences in the lead-up to the 2018 election but was released on bail. He was later cleared and an appeal by the anti-corruption commission was dismissed.

    Planned protests by the National Federation Party, the second largest opposition party, were denied permission in October 2020 (during the COVID-19 pandemic) and August 2019 (before the COVID-19 pandemic). The 2019 protest was denied permission due to incorrect documents being provided.

    DFAT is aware of allegations of police harassing members of opposition parties. In-country sources told DFAT that such incidents are likely the result of orders from senior people in the police, military or government. Police allegedly use the Public Order Act to effect arrests in order to prevent opposition meetings, prevent protests or even shut down debate. Opposition parties use social media regularly but may self-censor.

    For example, in 2020 police raided a meeting held by Rabuka in Rakiraki in the north of Viti Levu. The meeting was stopped because Rabuka allegedly did not have a permit for a meeting of more than 10 people. Police were aware of the meeting going ahead as organisers had sought clarification on a permit to operate outside of a curfew implemented to control COVID-19. The dispersal was apparently peaceful and the media reported that police headquarters in Suva had asked Rakiraki police for an explanation of the events.

    The events described above have been directed at high-profile people within the opposition. DFAT understands that rank and file and low-profile opposition party members would be much less likely to experience interference. Those involved or perceived to be involved in opposition parties who facilitate high-profile criticism (for example, journalists or social media users) may be questioned by police, but DFAT understands that this is not a widespread problem affecting low-profile party members.

    Politics and parliamentary tactics can be energetic and robust. Opposition political parties and figures are public with their views, and efforts to discipline them are in accordance with the law. DFAT assesses that opposition political parties and their members experience a low risk of official violence but notes that discrimination in the form of questioning or restriction on activities is possible.

    …

    DFAT is not aware of any official or societal discrimination against failed asylum seekers. … Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.

    …

    iTaukei

    Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.

    Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.

    iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.

    …

    Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.

    Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.

    FINDINGS AND REASONS

28. Based on the information in the application, the Tribunal finds that [the second applicant] is a Fijian national. 

29. The Tribunal accepts that [the second applicant] and her family are variously members or active supporters of SODELPA.  It does not accept that [the first applicant] hosted meetings for the Party.  On her own evidence he had no official function in the Party and therefore it was not readily plausible that he was hosting meetings.  [The second applicant] could not explain the political or organisational context at the time, and the application itself does not mention hosting of meetings.  The Tribunal does not therefore accept that a meeting was held at their house in 2018. 

30. The Tribunal accepts that [the second applicant]’s son in law ([Mr B], the husband of [Mrs A]) is a prominent member of the Fijian community in Australia and a known supporter of the Fijian opposition. 

1. The Tribunal does not accept that [the second applicant] was harassed either verbally or by throwing of stones, either in relation to hosting of meetings or in relation to [Mr B]’s profile.  The application refers to no such events.  It expresses a “fear” that they may be targeted, only in relation to their son-in-law’s profile. 

2. There was no evidence before the Tribunal that any of [Mr B]’s connections in Fiji have ever been the subject of adverse attention of the authorities.  The country information states that only high profile Party leaders are at risk of such attention, rank and file members are at a low risk.  As [the applicants] have not been targeted in the past, the Tribunal is not satisfied that they are imputed with [Mr B]’s profile in a way that makes them of any direct interest to the Fijian leadership.  The Tribunal does not accept that [the second applicant] faces a real chance of harm by reason of her association with the opposition.  

3. It was suggested that [the second applicant] would be assumed by the Fijian authorities to have criticised the Government in the course of applying for a protection visa.  The country information indicates that there is no real chance of serious harm in being a returned asylum seeker. 

4. The Tribunal is not satisfied that [the second applicant] has a well-founded fear of persecution for reason of her actual or imputed political opinion.

5. [The second applicant] did not claim to fear persecution for any of the other refugee reasons.  To the extent there is an implied claim that she is at risk of harm due to being iTaukei, the country information would render such a claim ill-founded.  The country information does not support the claim made in the application that Fiji deprives elderly people of health care. 

6. The Tribunal therefore does not accept that [the second applicant] faces a real chance of serious harm for the reasons specified in s 5J(1).  She therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that [the second applicant] is not a refugee as defined in s.5H(1). 

7. Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions.  As the Tribunal has already found that there is no factual basis for [the second applicant] having a real chance of serious harm in relation to the claims discussed above, similarly it finds that she does not face a real risk of significant harm, as defined, in relation to those claims.  While reports of police and military brutality in Fiji are alarming, any risk of [the second applicant] being harmed by the authorities is assessed as no more than speculative.  The crime rate in Fiji is generally low and [the second applicant] did not make a case that she faces a particular threat of violence from within the community or from her family (notwithstanding tensions with her daughter remaining in Fiji).  The Tribunal is not satisfied that [the second applicant] faces a real risk of suffering significant harm of the types referred to in s 36(2A). 

8. The foregoing findings are reinforced by the fact that despite past visits to their children in Australia [the applicants] did not seek protection.  Regardless of the inhospitable climate, if they feared serious or significant harm of the types envisaged in the protection regime, the Tribunal would have expected they would take earlier opportunities to apply for protection. 

   CONCLUSION

9. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

10. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    decision

11. The Tribunal has no jurisdiction in relation to the first-named applicant. 

12. The Tribunal affirms the decision not to grant the second-named applicant a protection visa.

    Genevieve Hamilton
    Member